The opinion of the court was delivered by: FOLEY
MEMORANDUM -- DECISION and ORDER
JAMES T. FOLEY, Chief Judge.
This suit filed in behalf of inmates of the Special Housing Unit, known as Unit 14, at the Clinton Correctional Facility, Dannemora, New York, as many similar suits do, constitutes a prolonged litigation. Unit 14 is described in the record of the trial of this case as "a prison within a prison, or a jail within a jail". It is used for the confinement of prisoners who violate institutional rules and are confined therein in segregation for disciplinary purposes. Out of a large prison population of usually 1500 to 1900 inmates, as the amended complaint states, and the trial record indicates, the number of those so confined is actually minimal -- there not being more, so confined, at any given time than approximately 20. This two-judge federal district court in this upstate Northern District of New York, has within its boundaries three maximum security prisons or correctional facilities, as now called, of New York State: Auburn at Auburn, New York; Clinton at Dannemora, New York; and Great Meadow at Comstock, New York. The total population of the three averages in the neighborhood of 5,000.
My contact with Unit 14 at Clinton, known to the inmates in their language as "the Box", as a federal judge is unmatchable. I had to consider serious claims challenging on federal constitutional grounds, living conditions involved in confinement there on two previous occasions and render rulings of a very sensitive nature. The rulings were highly important ones. It was my belief from this federal contact and substantial appellate review in one that further need for the federal judicial scrutiny of Unit 14, at least during my service as a district judge, was remote. See Wright v. McMann, 321 F. Supp. 127 (N.D.N.Y.1970), aff'd in part, rev'd in part on other grounds, 460 F.2d 126 (2d Cir. 1972), cert. den., 409 U.S. 885, 93 S. Ct. 115, 34 L. Ed. 2d 141 (1972); Ray v. Rockefeller, 352 F. Supp. 750 (N.D.N.Y.1973), appeal by plaintiffs dismissed by Court of Appeals, Second Circuit, 1/23/74, for failure to prosecute. However, the necessity to canvass challenges again as to certain aspects of the living conditions and rules governing Unit 14 claimed to measure up to federal constitutional violations and deprivations confronts me for the third time.
The past history of this present suit was set forth in detail in my memorandum-decision and order of December 8, 1974. The heavy burden that the numerous filings by prisoners in this district as noted in Wright and Ray, supra, was reemphasized in that particular decision by pointing out that this action was started pro se under other inmates names and was dismissed by my decision of July 6, 1973. This decision was reversed by a three-judge panel of the Court of Appeals, Second Circuit, by a 2-1 decision of October 2, 1973, with express remand "to conduct an evidentiary hearing upon the Motion for Preliminary Injunction". Thereafter, in accord with this reversal and remand, I had to write five more decisions. By decision dated December 4, 1973, I appointed The Legal Aid Society, Prisoners' Rights Project, the present attorneys, who filed an Amended Complaint on August 1, 1974. My decision of December 6, 1974, granted their motion for class action maintenance and granted an important discovery motion that directed the answer to an interrogatory that necessitated the search of many records by the defendants of inmates confined in Unit 14 from June 1, 1973 to May 15, 1974. Extensive discovery procedures were undertaken by these experienced and able lawyers of the Prisoners' Rights Project after the remand for evidentiary hearing on a motion for preliminary injunction transforming the directed evidentiary hearing into a full blown trial on four claims in the amended complaint.
The trial commenced May 12, 1975 and ended May 15, 1975. The request for injunctive relief was withdrawn, no money damages were sought, and only declaratory relief on the four claims requested. The trial transcript consisted of 765 pages and was not received by me until August 4, 1975. The formal final briefing with proposed findings of fact and conclusions of law was submitted as of October 6, 1975, but there has been further and consistent communication from the attorneys to the court concerning important legal rulings in the federal courts at every level that pertain to the issues in this action. There has also been attention called to legislative and administrative developments and changes that have occurred in New York State that have bearing on the issues here.
It has been my experience as a federal judge from practically daily contact in recent years with these state prison problems that good faith efforts to attain needed reforms in the prison system of New York have taken place. There is evident a desire to attain sensible, practical and realistic reforms. Many of the grievances complained of in the Wright case about living conditions and rules of confinement in the segregation unit were corrected previous to the actual trial of the issues. Presently, as we know from widespread media coverage, the problems in New York State prisons are currently undergoing intense examination and investigation, legislatively and administratively. Public hearings have been held in Albany by various committees of the New York State Legislature in the past year to bring public attention to the problems and point up the critical need for their solution. Viewpoints of every kind from administrators, superintendents, penologists, inmates and correction officials and officers were heard and considered in a worthwhile attempt to reach solutions that will alleviate the unrest that exists in prisons not only in New York, but throughout the Nation. As I noted in Wright, supra, 321 F. Supp. at p. 136, no one will ever have all the answers, but I believe these efforts sincerely undertaken will bear fruit; the turmoil will subside. Balanced decisions will be made that will insure fair and humane treatment that New York citizens want accorded to the inmates with safeguards maintained to protect the interests of the public and correction officers in the paramount consideration of security in the institutions. New York has not been by any means a backward state in the maintenance of its state prison system from my contact with such matters. The record in this case as it did in Wright and Ray is to the contrary. Radical changes have been made by New York legislation, and by administrative rules and regulations promulgated to govern the maximum security prisons, or correctional facilities as now called. Grievance and liaison committees with inmate representation have been formed in progressive attempts to relieve animosities and tensions that exist in the institutions between inmates and fellow inmates, and inmates and correction officers. The autonomy that Wardens had in the administration of their prisons has vanished. In this confined atmosphere, where large prison populations have to be guarded and serviced, the necessities of life are adequately furnished with programs for education and recreation in old institutions that are kept in a good state of cleanliness and repair. Reasonable access to see the conditions in the prisons and to interview inmates has been accorded to the media. The simple answer to overcrowding as is obvious is to build new prisons, and particularly to construct them in areas where visits are possible and not too distant from home areas where most of the inmates in maximum security prisons come from. Such projects would necessitate substantial expenditures that may not be within reach in these days of financial difficulties in New York. The hard fact of life also is that there is little public enthusiasm for such undertakings and no particular area seems to welcome the erection of maximum security prisons in its confines. New York learned bitter lessons from the Attica tragedy. The present Governor, legislators and correctional officials should not be continuously belabored about it but should be allowed to move forward in new constructive approaches. They should be given the credit due in their commendable efforts to expose the problems to public awareness and attract public support for proper reforms that should be proposed. The closed world that existed in the prisons of New York some years ago no longer exists.
In cases of this kind, I am ever mindful of the limited right the federal courts have to adjudicate claims that arise from state prison confinement. Noted opinions have been handed down from every level of the federal court system that advise extreme caution in adjudicating claims that essentially involve the general administration of a state prison and do not reach, as they must, to warrant federal court intervention and decree, the level of constitutional violations. See Rhem v. McGrath, 326 F. Supp. 681, 689 (S.D.N.Y.1971). Chief Judge Kaufman of the Second Circuit set forth the reason for this principle in striking and memorable language:
It is not only that we, trained as judges, lack expertise in prison administration. Even a lifetime of study in prison administration and several advanced degrees in the field would not qualify us as a federal court to command state officials to shun a policy that they have decided is suitable because to us the choice may seem unsound or personally repugnant. Sostre v. McGinnis, 442 F.2d 178, 191 (2d Cir. 1971). (Emphasis in original).
The United States Supreme Court has continuously expressed the adherence that must be maintained to this doctrine of restraint from undue interference in the administration of state prisons unless federal constitutional violations and deprivation are clearly evident. The principle has been enunciated again and again with a variety in the language of expression, but the dominant thought remains clear. The most recent statement about the settled principle is contained in Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976), stating that the federal courts do not sit to supervise state prisons, the administration of which is of acute interest to the State, citing Preiser v. Rodriguez, 411 U.S. 475, 491-492, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973); Cruz v. Beto, 405 U.S. 319, 321, 92 S. Ct. 1079, 31 L. Ed. 2d 263 (1972); Johnson v. Avery, 393 U.S. 483, 486, 89 S. Ct. 747, 21 L. Ed. 2d 718 (1969). The Johnson case is often cited and states at p. 486, 89 S. Ct. at p. 749:
There is no doubt that discipline and administration of state detention facilities are state functions. They are subject to federal authority only where paramount federal constitutional or statutory rights supervene. It is clear, however, that in instances where state regulations applicable to inmates of prison facilities conflict with such rights, the regulations may be invalidated.
The Court of Appeals, Second Circuit, in accord with the general caution of restraint has ruled that prison authorities must of necessity be allowed wide discretion in the use of protective confinement for the purpose of protecting the safety and security of the prison and the general population. Circuit Judge Mulligan in regard to these state prisoner cases, with notable phrase, advises that the federal judges are not ombudsmen charged with the responsibility of reforming the State penal system. Wallace v. Kern, 520 F.2d 400, 408 (2d Cir. 1975); see also McRedmond v. Wilson, 533 F.2d 757, 766 (2d Cir. 1976) (Van Graafeiland, C.J. dissenting).
Of course, it is and must be recognized that these guidelines and cautions are very difficult at times to follow when broad federal constitutional protections are invoked for a particular factual situation. It is a hard test for the humanism of a federal judge, not to want to correct policies and regulations that to him seem harsh and arbitrary even when he tries conscientiously to apply the principle that personal aversion and predilections are not to enter the judicial mind when grievances arising from state prison administration are presented for judicial decision. It has been noted that the failure in the past of legislators to take proper correctional action to remedy inhuman conditions has eroded the historical reluctance of federal courts to interfere with the administration of penal institutions. Detainees of Brooklyn House of Detention for Men v. Malcolm, Commissioner, 520 F.2d 392, at 397 (2d Cir. 1975). Federal judges must be circumspect not to interfere without warrant and subject themselves to the suspicion that "it is the office of a good judge to enlarge his jurisdiction." 1 Works of Thomas Jefferson 121-22 (Federal ed. 1904). The practices complained of in these settings still have to be weighed and assessed in the light that central to all other correctional goals is the institutional consideration of internal security within the correctional facilities themselves. Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 41 L. Ed. 2d 495 (1974). It has been clearly stated by the highest judicial authority of the land and has to be accepted that a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. Wolff v. McDonnell, 418 U.S. 539, 555-556, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974).
In my decision of December 6, 1974, I summarized and listed in this order the four claims remaining in the complaint. The brief description set forth was in this order: (1) Adjustment Committee's failure to provide written notice of disciplinary charges before confinement in Unit 14; (2) denial of adequate exercise in violation of 7 NYCRR Section 301.5(6) providing for exercise of one hour per day; (3) imposition of humiliating strip searches with rectal and testicle examination before contact with visitors; (4) denial of effective access to the courts inasmuch as Unit 14 inmates are not allowed access to the prison law library privileges, and are only provided two law books per day, and not permitted to have legal assistance from the inmates in the segregation unit.
In the discussion of the claims in this decision, this order shall not be followed but the claims shall be discussed in order of their importance and constitutional substance as they impressed me as a trial judge and after extensive legal research into this ever changing field of law. My prolonged reflection and search, I believe, is warranted because the caution pronounced so often, unless such are to be placed in the realm of empty words, that federal courts should not interfere in state prison administration unless federal constitutional deprivations and violations are evident and proven.
As often occurs, changes have taken place since the filing of the original complaint in this case, in the rules and regulations that do, in my judgment, affect certain of the issues presented herein, followed by appeals, remand, and filing of an amended complaint. These changes, I find from long experience are usually good faith efforts by New York correction administrators and officials to comply in the majority of instances with the numerous federal court rulings that have been handed down in recent years by the federal courts in the Second Circuit resulting from New York State prisoners filing numerous claims alleging varied constitutional deprivations under the federal civil rights statutes.
Therefore, before entering upon the evaluation of the particular claims and my conclusions regarding them, it might be well to set forth the comprehensive statement of Justice Stewart regarding the important and competing factors and objectives that are present and must be considered, the need to weigh the important interests of society that are at stake, exercising careful appraisal of the impact and consequences that may follow from federal judicial decrees. Justice Stewart summarized them in these words:
An important function of the corrections system is the deterrence of crime. The premise is that by confining criminal offenders in a facility where they are isolated from the rest of society, a condition that most people presumably find undesirable, they and others will be deterred from committing additional criminal offenses. This isolation, of course, also serves a protective function by quarantining criminal offenders for a given period of time while, it is hoped, the rehabilitative processes of the corrections system work to correct the offender's demonstrated criminal proclivity. Thus, since most offenders will eventually return to society, another paramount objective of the corrections system is the rehabilitation of those committed to its custody. Finally, central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves. It is in the light of these legitimate penal objectives that a court must assess challenges to prison regulations based on asserted constitutional rights of prisoners.
Pell v. Procunier, supra, 417 U.S. 817, 822-823, 94 S. Ct. 2800, 2804, 41 L. Ed. 2d 495 (1974). (Underscoring supplied).
I -- THE RECTAL AND TESTICLE VISUAL SEARCH
The above description of the subject to be discussed herein is a literal one of the actual incidents that take place when such type search, challenged in this suit, is visually conducted by correction officers when inmates leave Unit 14, the segregation Unit at Clinton Correctional Facility for certain purposes, and upon return to the Unit. The correction terminology for the search, used in New York and elsewhere, is much more euphemistic and less attention calling. The usual examination of these particular parts of the body is termed a strip frisk search.
Title 7 of NYCRR 1020.5, a section of the New York Official Compilation Codes, Rules and Regulations governing correctional services filed December 24, 1974, sets forth the definitions of the type frisking of the person of inmates in the institutions that are authorized.
1020.5 Definitions (a) A pat frisk means a search of an inmate's person and his clothes while the inmate is clothed, except that an inmate shall be required to remove hat and shoes. The search shall include reaching into the inmate's clothing.
(b) A strip frisk means a search of an inmate's person and his clothes after the inmate has removed all his clothing. The search includes a thorough inspection of the clothing and a close visual inspection of the inmate's person, including body cavities. If there is reasonable cause to believe contraband has been concealed in a body cavity, the inmate shall be immediately examined and/or x-rayed by a facility health staff member.
The next section of Title 7, particularly relevant and important to the issue here, was filed December 24, 1974, but was amended substantially in its wording and instructions, effective December 18, 1975, a date months after the trial of this case in May 1975. This section is 7 NYCRR 1020.25 providing as amended:
1020.25 Special housing units. (a) An inmate is to be strip frisked before leaving a special housing unit:
(1) if there are reasonable grounds to believe the inmate has a weapon or dangerous contraband concealed on his person; or
(2) if the inmate has a history of committing assaults on facility personnel or of possessing dangerous contraband.
In all other cases, an inmate is to be pat frisked before leaving a special housing unit.
(b) An inmate is to be strip frisked before leaving a special housing unit if he is to leave ...